Monday, March 26, 2012

Last night the TV show 60 minutes aired a segement on prosecutorial misconduct in a case in Texas in which the defendant was recently exonerated (after 25 years in prison) by DNA evidence. It has been alleged that the prosecutor in the case knowingly withheld evidence it was legally obligated to disclose to the defendant's lawyers. The prosecutor is now a judge and, according to the show, currently under investigation for the incident. Here is the full segment. It lasts about 14 minutes, but there are a couple of commercials within it. Pay attention to the prosecutor's "apology" (at about the 8 minute mark). He apologizes because "the system" failed, but then denies any misconduct on his part. I wonder which part of the system he means failed? I have more comments below. Please continue reading after you watch the video. If, for some reason you can't see the video below, you can watch it here.

It seems to me that the real issue in this case starts with the question of whether the evidence that was allegedly withheld was "exculpatory." Note in the video that the attorneys for the defendant argue the evidence would have proven the defendant was innocent while the current lawyer for the former prosecutor claims it would not have.

If the evidence was "exculpatory", then the prosecutor had a duty to disclose it. Since there is evidence he did not disclose it, that would lead you to conclude that he acted in violation of his duty. Note that under the current Model Rules, the prosecutor would clearly have a duty to disclose the documents in question because the duty under the MRs is broader than the duty under previous case law (namely Brady v Maryland).

The problem with the discussion of the issue by the lawyers in the video is that whether the documents would have proven the defendant innocent is actually irrelevant. "Exculpatory" does not mean that it would have exonerated the defendant or proven that the defendant was not guilty. It only means that there is a “reasonable probability” that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. See Kyles v Whitley, 514 U.S. 419 (1995).

Based on this, I think the evidence was exculpatory and that, therefore, there was a duty to disclose the information.

The statement by the current lawyer for the then-prosecutor that a claim that his client engaged in unethical conduct is "unwarranted" is ridiculous. Given the facts, the claim is clearly warranted. Also, it bothers me that the lawyer claims we are dealing with "speculation" about things that happened 25 year ago. Yet, here is one thing that does not seem to be speculation: the defendant did not get the documents. No one - not the prosecutor/now judge nor his lawyer - disputed that. The only thing they claim is that the prosecutor now says he could not believe he wouldn't have had a conversation with the defendant's attorney about the case. He did not claim that he did in fact disclose the information. As to that the best he could do was to say he did not remember.

UPDATE 4/21/13: A judge has decided there is sufficient evidence that the former prosecutor should be tried for criminal contempt, tampering with evidence and tampering with government records. He said Anderson concealed the availability of exculpatory evidence. Go here for more details.

The debate over whether states will begin to allow non-lawyer firm ownership/investment in law firms continues although a few days ago a challenge by Jacoby & Meyers to New York state’s ban on law firms accepting equity investments from non-lawyers was dismissed. The opinion is available here. In contrast, in a similar case filed in New Jersey, the court denied a motion to dismiss. The opinion in that case is available here. The Wall Street Journal law blog has more information.

Meanwhile, three days ago the Board of Governors of the Illinois State Bar Association adopted a resolution reaffirming its opposition to fee splitting with non-lawyers and the ownership of law firms by non-lawyers. Go here for more information.

Three new articles in the New York Times discuss the importance of the Supreme Court's decisions on ineffective assistance of counsel. The articles can be found here, here and here. As one of the articles explains "[t]he Court's decisions affirm a defendant’s right under the Sixth Amendment to have the assistance of an effective lawyer during pretrial negotiations. . . . Taken together, the rulings greatly expand the supervisory reach of judges to include plea bargaining, a process that has traditionally been conducted informally and with . . . little oversight . . ." In addition, the SCotUS blog has detailed analysis of the opinions here.

Thursday, March 22, 2012

Here is an interesting article on the conflicting positions of the ABA and New York's Committee on Professional Responsibility on the possible ethical implications of searching for and examining metadata in digital documents that lawyers receive from other lawyers. The article concludes that these conflicting positions "serve only to place New York lawyers at a tactical disadvantage" and, for that reason, calls for New York to change its approach to the issue.

Wednesday, March 21, 2012

Today the Supreme Court announced two decisions in cases involving claims of ineffective assistance of counsel that essentially conclude that criminal defendants have a constitutional right to effective lawyers during plea negotiations. The Court, also set the standard to meet in order to obtain relief when the defendant's argument is that the attorney's ineffective assistance resulted in the rejection of the plea offer. Both cases were decided by 5 to 4 votes. I have not had a chance to read the opinions myself, so I will reserve my opinion for now. Meanwhile, however, here is a quick summary (courtesy of the SCotUS blog) and a few links.

In the first opinion, Missouri v. Frye,the Court held that the Sixth Amendment right to effective assistance of counsel ex­tends to the consideration of plea offers that lapse or are rejected and that that right applies to “all ‘critical’ stages of the criminal proceedings.” Justice Scalia filed a dissenting opinion, which was joined by the Chief Justice and Justices Thomas and Alito. The oral argument for this case is available here.

In the second opinion, Lafler v. Cooperthe Court held that where counsel’s ineffective advice led to an offer’s rejection, and where the prejudice alleged is having to stand trial, a defendant must show that but for the ineffective advice, there is a reasonable probability that the plea offer would have been presented to the court, that the court would have accepted its terms, and that the conviction or sentence, or both, under the offer’s terms would have been less severe than under the actual judgment and sentence imposed. Justice Scalia filed a dissenting opinion, in which Justice Thomas joined and in which Chief Justice Roberts joined as to all but Part IV. Justice Alito also filed a dissenting opinion. The oral argument is available here.

The New York Times has published an editorial on the need for the Department of Justice to "take an even closer look at the powers and responsibilities of its prosecutors, after a scathing new report on the case by a court-appointed investigator" after the DoJ acknowledged pervasive prosecutorial misconduct in the corruption trial of the late Senator Ted Stevens. The editorial is available here.

The Blog of the Legal Times is reporting (here) that the Senate Judiciary Committee will hold a hearing on March 28 at 10 a.m., to discuss the allegations of prosecutorial misconduct in the Ted Stevens case. The author of the report is expected to testify.

Back in January, 2011, I reported that the Illinois legislature rejected a bill that attempted to regulate entities that lend money to litigants in exchange for a percentage of the amount recovered in the case. Typically, the interest rates on those loans are very high (I have seen ads that say the rates are over 45%, for example.) For some background information on the issues related to this industry, you can take a look at the discussion of the legal and ethical issues that relate to the litigation loan industry in Room for Debate, the Legal Ethics Forum and The Wall Street Journal Law Blog, the NY Bar Association and the New York Times.

Now comes news that in Oklahoma, Oklahoma Senate Bill 1780 would make it against the law for a company to make a loan to a plaintiff that would be paid back from settlement funds or a jury award. It would apply to any case pending in an Oklahoma state court or any federal court in the state. Go here for the full story.

You are representing a client in a contract dispute where the opposing party claims he is owed $10,000 for services rendered. The client likely will not be able to pay your hourly rate to handle the matter. Can you enter into a “reverse contingent fee” agreement whereby you will be entitled to a percentage of the money that you save the client? ETHICSearch has published a short article explaining why the answer is yes, as long as the fee is reasonable, of course.

Lawmakers filed a new bill Thursday that would change discovery rules in federal criminal cases, requiring prosecutors to turn over any information that would be favorable to the defense as soon as possible – or face sanctions. Go here for the full story.

The long awaited and controversial report on prosecutorial misconduct in the Ted Stevens case has finally been realeased. The 500+ page report is available here. The Justice Department hasn't yet published its internal review of the case, but it has issued a press release available here (thanks to the Legal Ethics blog for that link!). For more on the latest news on the report, go to the Blog of the Legal Times (here, here, here and here) and the Wall Street Journal law blog. For more on the background story involving the Ted Stevens case go here, here, here, here, here and here.

Tuesday, March 13, 2012

Unlike other states that have addressed the issue, the Indiana bar has issued an ethics opinion (Ethics Op. No. 1 of 2012) which concludes that using "groupon" or other similar group coupon or daily deal arrangements to market legal services is probably unethical.

The opinion states that using these programs may violate a number of Indiana rules of professional conduct including rules 2.1, 1.15, 1.16, 5.4 and 7.2 because the programs would allow someone other than the attorney to hold client funds or create conflicts of interests or allow the sharing fees for referring clients.

The University of Pennsylvania Law Review sponsors a website called PENNumbra which hosts debates on important topics. The debates usually involve two authors. Each one writes an opening statement, a reply to the other's opening statement and a closing statement. Today the debate is on whether the Supreme Court should adopt rules or guidelines to regulate recusal by the justices. The first opening statement is now available here. Check the website for the future installments.

For decades poor parents in New Hampshire were provided lawyers if they could not afford them, but funding was cut during the last legislative session. The issue is now before the state's supreme court and the First Amendment Center is reporting today that the oral arguments on whether indigent parents have a right to court-appointed counsel in abuse and neglect proceedings will be open to the public. Unfortunately, I don't have the name of the case or any more information.

Monday, March 12, 2012

The debate over whether states will begin to allow non-lawyer firm ownership/investment in law firms continues although a few days ago a challenge by Jacoby & Meyers to New York state’s ban on law firms accepting equity investments from non-lawyers was dismissed. The opinion is available here. In contrast, in a similar case filed in New Jersey, the court denied a motion to dismiss. The opinion in that case is available here. The Wall Street Journal law blog has more information.

Meanwhile, three days ago the Board of Governors of the Illinois State Bar Association adopted a resolution reaffirming its opposition to fee splitting with non-lawyers and the ownership of law firms by non-lawyers. Go here for more information.

Earlier today, the Illinois court of appeals issued two opinions on ineffective assistance of counsel. In the first one, People v. Watson, the court reversed the defendant's conviction for residential burglary because the defendant’s trial counsel was ineffective in failing to cross-examine the State’s DNA expert or present evidence that the partial profile should be considered a “nonmatch,” failing to present expert testimony that the statistical calculations relied on by the State were flawed, and failing to understand the DNA evidence or ensure that it was properly explained to the jury. Interestingly, (and sadly) the court also noted that the defendant's posttrial counsel was also ineffective in only filing a notice of appeal without filing any postsentencing motions. The court remanded for a new trial with new counsel.

In the second case, People v. Remsik-Miller, the defendant was convicted and sentenced to 22 years in prison.The defendant then filed and argued a post conviction motion pro se in which she argued that her attorney "did not represent her to his fullestability during [her] trial.” The motion was denied, but the court of appeals remanded. The court decided that before deciding the motion it would have to be determined whether defendant’s comment —that defense counsel did not represent her “to his fullest ability during [her] trial”—amounted to an allegation of ineffective assistance of counsel which would have triggered the lower court’s duty to inquire. For this reason, the court of appeals remanded "for the limited purpose of allowing the trial court to conduct the necessary preliminary examination as to the factual basis of defendant’s allegation."

It has not been a good month for Eric Holder, the Attorney General of the US. First it was his ludicrous speech about the President's authority to order extrajudicial killings without due process - about which I and others have commented here, here, here and here. Then there was the story about the attempt to hide the identity of a prosecutor who engaged in misconduct and the scathing response by the court criticizing the Dept of Justice (see here), and now it is his testimony regarding the report on prosecutorial misconduct during the Ted Stevens case.

The Blog of the Legal Times is reporting (here) that Holder testified "on Capitol Hill that the Ted Stevens report on prosecutorial misconduct contains "disturbing" findings against Justice Department lawyers." Duh! Given that the court-appointed investigator found back in November that the high-profile prosecution of the late Senator Ted Stevens was “permeated” by the prosecutors’ “serious, widespread and at times intentional” illegal concealment of evidence, Mr Holder's statement is quite an understatement. Tell us something we did not know already. For more on the background story involving the Ted Stevens case go here, here, here, here and here.

The real question is how widespread prosecutorial misconduct is and whether it is true, as some have claimed, that Holder's administration is knowingly turning a blind eye to it. On this question, take a look at the comments under the report in the BLT.

Saturday, March 10, 2012

I have been following the critical reaction to the very problematic argument that the Obama administration has inherent (and pretty much absolute) power to order extrajudicial killings. See here, here and here.

Today, the New York Times added its voice to the debate. It criticizes Obama's position in an editorial that starts by stating that "President Obama, who came to office promising transparency and adherence to the rule of law, has become the first president to claim the legal authority to order an American citizen killed without judicial involvement, real oversight or public accountability." Go here to read the full text.

Thursday, March 8, 2012

A few days ago, I wrote about the Attorney General of the United States' speech in which he tried to explain why it would be OK for the President to order someone to kill you without having a trial or even having charged you with any crime. (See here and here). Today Johnathan Turley is reporting here that FBI Director Robert Mueller declared before Congress that he simply does not know whether the current policy would allow the killing of citizens in the United States. Go here for more.

Abnormal Use has a story with lots of links to information on a problem we discuss in class and that was the subject of a session at a recent national meeting of the ABA's Center for Professional Responsibility: the fact that the legal profession has higher than average rates of alcoholism, depression and suicide. In fact, a study by Johns Hopkins University found that among more than 100 occupations studied, lawyers were three times more likely to suffer from depression than any other profession. Also, the National Institute on Alcohol and Alcohol Abuse estimates that the rate of alcohol or chemical dependency among lawyers may be twice as high as that of the general population. As if this was not enough, suicide is reportedly the third leading cause of death among attorneys, after cancer and heart disease and the rate of death by suicide for lawyers is nearly six times the suicide rate for the general population. For more information and links to some of the studies that reach these conclusions go here.

Wednesday, March 7, 2012

Yesterday I wrote about Eric Holder's speech on the Obama administration's policy on extrajudicial killing. Professor Jonathan Turley published a longer comment on the subject today which you can read here.

Tuesday, March 6, 2012

Over the years, I have commented on a number of cases where courts have reversed convictions due to improper comments by prosecutors, but I don't think I have posted a case where the court orders a new trial in a civil case... until now.

In this case, Maraviglia v. Lokshina (available here), the court concluded, among other things, that "[a] new trial is warranted in light of the inappropriate cross-examination of the plaintiffs' witnesses, as well as the inflammatory and improper summation comments of counsel for the defendants." The court described some of the conduct as follows:

The defendants' counsel repeatedly denigrated the medical background of the injured plaintiff's treating physician. Counsel also made inflammatory remarks, including commenting during summation that the plaintiff's treating physician and the plaintiff were "working the system." Moreover, counsel remarked that the injured plaintiff's treating physician testified "at an enormous amount of Workers [Compensation] proceedings" and was the "go-to" doctor in Suffolk County for patients who wished to stop working. By contrast, counsel vouched for the credibility of the defendants' expert witness by thanking "God there are people like [him] . . .

Additionally, during cross-examination of the plaintiffs' expert anesthesiologist, counsel for the defendants twice referred to the medical center where this doctor performed certain procedures as a "parking lot," even though the court had sustained the plaintiffs' objection to the first use of this reference. . . ."

The Attorney General of the United States spent a little time trying to explain why it would be OK for the President to order someone to kill you without having a trial or even having charged you with any crime. But, Jonathan Turley explains, at least "Holder promised not to hunt citizens for sport."

Kevin Underhill takes the speech apart in a piece in Forbes and then again in Lowering the Bar, where he writes, in part that:

The lowlights of the speech, I think, were Holder's promise that no citizen would be blown up unless the government had determined (among other things) "that the individual poses an imminent threat of violent attack against the United States," and his somewhat unusual definition of "due process."

First, it turns out that "imminent" doesn't mean what you think it means (or what the dictionary thinks it means). Rather, the concept "incorporates considerations of the relevant window of opportunity to act, the possible harm that missing the window would cause to civilians, and the likelihood of heading off future disastrous attacks against the United States." If you see anything in there that has to do with being "imminent," please let me know. The "future" is a big place, and just because something might be in it does not make that thing "imminent."

Second, Holder did promise that nobody would be killed without "due process." Comforting! But no! Because this also doesn't mean what you think it means. "'Due process' and 'judicial process' are not one and the same," Holder said, "particularly when it comes to national security. The Constitution guarantees due process, not judicial process." Oh. So what process are we due? Executive process. But have no fear, you won't be put on a death list without a "thorough and careful review" of the (secret) evidence against you by the Executive Branch, Holder basically promised. So there's really no need to get those other branches involved. Let's just keep this between us.

The Wall Street Journal law blog is reporting that the Court of Appeals for the Second Circuit has found that New York's rule of Professional Conduct 7.4 is unconstitutional.

The rule states that if a lawyer holds himself out to be a specialist, the name of the organization that certified the lawyer must be identified "prominently" in advertisements or elsewhere. In this particular case, the lawyer in question did display the information in his billboard ad but the NY attorney grievance committee argued the size of the font was too small to meet the “prominently made” requirement.

The attorney challenged the constitutionality of the rule in federal court and lost, but the Court of Appeals has now reversed. The opinion is available here. For more information and analysis go here.

Friday, March 2, 2012

Suppose you go to a store and pay with a $10 bill, but thinking you paid with a $20, the cashier gives you more change than you deserve. Would you correct the error? You don't need to tell me... but let me tell you this, if you are a lawyer and the cashier is a client paying for your bill, you better....!

Two separate cases reported this month in the Legal Profession blog deal with the issue. In the first one, Iowa Supreme Court Attorney Disciplinary Board v. Ries, Jr, an attorney was suspended for not refunding the clients after it was pointed out they had paid the bill twice. The attorney charged the client a $500 retainer but, after the representation ended, the final invoice failed to credit the $500 that had already been paid. The attorney then did not pay attention to the client's concerns when the client discovered the error and complained the attorney had been paid $500 more than he was entitled to.

In the second case, the Minnesota Supreme Court imposed an indefinite suspension of no less than two years to an attorney who had engaged in a pattern of misrepresentations, failed to maintain a trust account and failed to pay an arbitration award. Among other things, at one point the attorney was to receive an initial retainer payment of $1,000. She mistakenly was paid $5,000 which she did not place in escrow and did not refund when she was confronted with the error and discharged.

Thursday, March 1, 2012

Here is an interesting post from the Australian Professional Liability Blog on prosecutorial obligations. Although the language used is different in many ways, the underlying duties discussed are very similar to those in the rules of conduct in most states, the ABA Model Rules and the Restatement. I did find interesting that more than one source mentions that prosecutors have a duty to help the court "arrive at the truth," something I would not say since due process, rather that "the truth" seems to be the main goal in our system. As a famous movie quote goes, "the truth is we don't know what the truth is." (The first person who can name the movie gets a prize.)

Rather than mention a duty to help find the truth, the text of the comment to ABA Model Rule 3.8 states: "A prosecutor has the responsibility of a minister of justice and not simply that of an advocate. This responsibility carries with it specific obligations to see that the defendant is accorded procedural justice, that guilt is decided upon the basis of sufficient evidence, and that special precautions are taken to prevent and to rectify the conviction of innocent persons.. . . "

Last month I reported that, finally, U.S. District Judge Emmet Sullivan ordered the release of the report on prosecutorial misconduct in the Ted Stevens case. The scheduled date for the release of the report is March 15. Go here, here, here and here for more on the story. However, the Blog of the Legal Times is reporting today (here) that one of the prosecutors in the Stevens case has filed a notice indicating he wants the U.S. Court of Appeals for the D.C. Circuit to examine whether the report should be released to the public. Reportedly, Judge Sullivan has stated that keeping the report confidential “would be a disservice and an injustice.” Because I think that courts should always do as much as they can to expose and punish prosecutorial misconduct, I agree.

Richard Cebull, Chief Judge of the U.S. District Court for the District of Montana, has acknowledged that he forwarded a racist email to several friends. Judge Cebull has replied to the controversy saying the e-mail was not meant to be a racist comment but an attack on President Obama. Hmm. Let me see if I understand. It is not racist if it is an offensive attack on one black person but not on all black people. Another problem with this, if you read the message you will see the comment is not on Obama but on his mother. The judge also says the message was meant to be private. I see, now. So I guess that according to his own logic, the judge is not a racist. He's just an idiot. Professor Jonathan Turley is more eloquent than I on the issue here. He also has a copy of the e-mail message itself.